M/S Hotline Fashion India Pvt. Ltd. v. M/S Sentinel Consultants Pvt. Ltd. & Ors.

8. However, pursuant to the judgment and decree dated 21.10.2011 passed in CS(OS) No. 1571/1998, a revised judgment and decree dated 10.10.2012 came to be passed, modifying the operative directions in view of the directions passed earlier in I.A. No. 5530/2004. As per the modified decree, the amount deposited by the decree holder was directed to be paid to judgment debtors no. 3 and no. 4 after judgment debtor no. 1 executed the sale deed in favour of the decree holder.

9. Aggrieved thereby, judgment debtors no. 3 and no. 4 preferred an appeal, RFA(OS) No. 20/2012, which was dismissed by the Division Bench vide order dated 21.05.2012. The Court affirmed the judgment of the learned Single Judge, upholding the view that the sale deed executed in favour of judgment debtors no. 3 and 4 during the pendency of the suit, and in breach of the status quo order, was hit by the doctrine enshrined in Section 52 of the Transfer of Property Act, 1882 [TPA]. Nevertheless, the Court directed that a sum of Rs. 2,00,000/- deposited by the decree holder be paid to judgment debtors no. 3 and 4 therein. Thereafter, the decree holder instituted Execution Petition No. 127/2017 in CS(OS) No. 1571/1998 on 03.10.2012.

10. The judgment debtors no. 3 and no. 4 further carried the matter to the Supreme Court by way of a Special Leave Petition, which also came to be dismissed. Consequently, the finding that the sale deed in favour of judgment debtors no. 3 and 4 was executed during the pendency of the suit and in violation of the subsisting interim injunction, rendering it voidable at the option of the decree holder, has attained finality and is no longer open to challenge.

11. Thereafter, having exhausted their remedies, judgment debtors no. 3 and 4 instituted a fresh suit, being Civil Suit No. 39 of 2016 before the learned District Judge, South District, Saket Courts, alleging that the decree dated 21.10.2011 was obtained by way of collusion. This suit also came to be dismissed by the Court vide order dated 27.09.2016.

12. As noted earlier, on 03.10.2012, Execution Petition No. 127/2017 in CS(OS) 1571/1998 was filed by the respondent no.1-decree holder. On 31.10.2018, a Bailiff, executing warrants of possession, visited the property, including the rear basement, which was in the possession of the appellantobjector herein. Upon becoming aware of the proceedings, on 19.12.2018, the appellant-objector inspected the records of the Court and thereafter, filed an application under Order XXI Rule 97 CPC, challenging the execution of the judgement and decree with respect to the rear basement.

13. On 08.07.2023, the Executing Court dismissed the objection application under Order XXI Rule 97 CPC. Aggrieved by the said dismissal, on 27.09.2023, the appellant-objector filed the present appeal challenging the order of the Executing Court. Submissions on behalf of the Appellant-Objector:

14. Mr. Kanwal Chaudhary, learned counsel appearing on behalf of the appellant-objector, has made the following broad submissions:i. At the outset, learned counsel submits that the appellant-objector is the sole, absolute, and registered owner of the rear basement of suit property, admeasuring approximately 600 sq. ft. According to him, the said ownership is established vide a registered sale deed dated 07.08.2000, bearing Registration No. 7449, Addl. Book No. 2, Vol. No. 200, executed before the Sub-Registrar, New Delhi. Learned counsel further submits that the appellant-objector has been in continuous and uninterrupted possession of the rear basement since the year 2000. ii. He further submits that, in terms of Notification dated 27.11.1998 being No. K-12016/5/79-DDII2A/IB issued under the Building Bye- Laws, basements in plotted developments were not included in the Floor Area Ratio [FAR]. He contends that the respondent-judgment debtor undertook the construction of the portion of the basement, currently in possession of the appellant-objector, only after the amendment to the bye-laws. Consequently, the appellant-objector purchased the said portion in the year 2000, subsequent to the amendment. Thus, he contends that he has acquired the lawful ownership and possession of the rear basement in accordance with the prevailing regulatory framework. iii. Elaborating on the layout of the property and the chronology of its construction, learned counsel submits that the basement of the property in question consists of two distinct portions, i.e. the Front Basement and the Rear Basement. The Front Basement, admeasuring 251 sq. ft., was constructed alongside the main building during 1997- 98 as per the originally approved sanctioned plan. iv. The said Front Basement admeasuring 251 sq. ft. was the sole subject matter of CS (OS) No. 1571/1998, the suit for specific performance, which was instituted on 30.07.1998 by the respondent no.1-decree holder against the respondents no.2 and no.3-judgment debtors. At the time of institution of the suit for specific performance, the Rear Basement neither existed nor was permissible under the prevailing building regulations. v. According to learned counsel, only upon the amendment in the byelaws through Notification No. K-12016/5/79-DDII2A/IB dated 27.11.1998, the basements in plotted developments came to be excluded from the Floor Area Ratio [FAR] and therefore, the Rear Basement became permissible and was subsequently constructed by the respondent no.1-decree holders. vi. He further submits that on 31.10.2018, the bailiff visited the suit property with warrants of possession issued by the Executing Court in Execution Petition No. 127/2017 in CS(OS) No. 1571/1998 and sought to inspect the rear basement for the purpose of taking possession. vii. He contends that the Executing Court erroneously attached the entire basement floor of the property without being apprised that the basement consisted of two distinct portions. He submits that the bailiff, at the time of execution, neither possessed a site plan nor had any measurement of the basement portions. According to him, the same led to an erroneous assumption that the entire basement was covered under the decree passed by the Court in CS(OS) NO. 1571/1998. Learned counsel further contends that the plaintiff-decree holder had deliberately concealed these material facts from the Executing Court, resulting in the impugned order being passed without due consideration of the actual layout and ownership of the basement portions. viii. Learned counsel submits that the appellant-objector had no involvement in the underlying suit and was neither impleaded as a party nor made aware of the decree passed, therein, or the subsequent execution proceedings until the bailiff came to the suit property to attach the rear basement. He asserts that he possesses an independent right and title to the rear basement and, therefore, the impugned decree cannot be enforced against him. ix. In light of the same, the appellant-objector has raised objections under Order XXI Rule 97 CPC, challenging the validity of the judgment and decree dated 21.10.2011, as well as the revised decree dated 10.10.2012, passed in CS (OS) No. 1571/1998, before the Executing Court. x. He submits that the Executing Court, vide impugned order dated 08.07.2023, dismissed the objections of the appellant without any inquiry into his independent right and title over the rear basement. According to him, the Executing Court erroneously held that the sale deed in favour of the appellant was of no consequence and, this, according to him, resulted in grave injustice to the appellant-objector. xi. According to learned counsel, the case of the respondent no.1-decree holder in the suit for specific performance therein was that as per the agreement, he was to be handed over the maximum permissible covered area of the basement in the said building. However, the respondent no.1-decree holder contends that the respondents no.2 and no.3-judgment debtors had constructed a significantly truncated and abridged basement, thereby engaging in fraud. xii. Learned counsel emphasizes that the respondent no.1-decree holder, at no stage in the suit, disclosed or specified what constituted the maximum permissible covered area of the basement at the relevant time. Furthermore, it was not brought on record whether the basement was constructed in accordance with the sanctioned building plan. This, according to the appellant-objector, caused certain ambiguity as to the scope of the suit itself. xiii. Learned counsel for the appellant-objector further submits that on 12.07.2004, the respondent no.1-decree holder filed I.A. NO. 5530/2004 under Order XXXIX Rule 2A CPC, alleging contempt and breach of the injunction order passed in the suit. In the said application, the respondent no.1-decree holder provided details of the purchasers and occupiers of the front basement, impleaded them as parties, and also sought the appointment of a Receiver for the said front basement alone. However, from the pleadings in the said application, it is evident that the respondent no.1-decree holder was always aware of the construction and occupation of the rear basement by the appellant-objector. Despite this knowledge, the respondent no.1-decree holder deliberately refrained from taking any steps to implead the appellant-objector in the subject suit. xiv. He further contends that the respondent no.1-decree holder, taking undue advantage of the ex-parte proceedings in the suit, deliberately misled the Court and obtained the judgment and decree dated 21.10.2011 for the entire basement of the said property, without specifying the area, measurements, or any site plan of the basement(s), and thus a fraud has been played on the Court by the respondent no.1-decree holder. xv. He further contends that in distinction to the other parties, the ownership claim of the appellant-objector does not derive from the respondents no.2 and no.3-judgment debtors. Since the decree does not bind the appellant-objector, who claims ownership in his own right over a separate portion of the property, he rightfully filed objections under Order XXI Rule 97 CPC to establish his independent title to the Rear Basement and to expose the fraud committed by the plaintiff in obtaining the decree. However, the learned Executing Court, vide the impugned order, summarily dismissed the objections without conducting any inquiry into the independent ownership rights of the appellant over the rear basement. The impugned order is, thus, ex-facie erroneous and contrary to law and the facts on record. xvi. He concludes his submissions by stating that a perusal of the record of the Trial Court would indicate that there exist multiple unanswered questions and thus, fresh adjudication is required. He further places reliance on the decision of the Supreme Court in the case of Noorduddin v. K.L. Anand (Dr)1 to state that the scheme of Order XXI Rule 97 CPC empowers the Court to adjudicate upon the rights and interests of parties claiming an independent right qua the immovable property. He further relies on Babulal v. Raj Kumar[2] to contend that in the event an obstruction is caused in the nature of resistance, before the removal of the resistance, an adjudication is required to be conducted under Order XXI Rule 98. Submissions on behalf of the Respondent no.1-decree holder:

15. Mr. Bhushan Kapur, learned counsel appearing on behalf of the respondent no.1-decree holder, vehemently rejecting the submissions advanced on behalf of the appellant-objector, has advanced the following broad submissions:i. Learned counsel contends that he was originally inducted as a tenant with respect to the Ground Floor of the suit property, then owned by respondents no.2 and no.3-judgment debtors, vide lease agreement dated agreement dated 12.10.1994. ii. He submits that vide agreement dated 10.12.1996, executed between the respondents no.2 and no.3-judgment debtors, it was agreed that the suit property would be redeveloped by demolishing the existing structure and constructing a new residential building at the cost and expense of defendant no. 2. As per the terms of the collaboration agreement, the newly constructed building was to consist of a basement, ground floor, first floor, and second floor. In response, the third party therein filed their reply, admitting that they were unaware of the agreement to sell dated 27.03.1997 and had, in the said circumstances, taken a portion of the basement measuring 340 sq. ft. on rent from respondent-judgment debtor, vide lease dated 14.03.1997, for a period of three years. This was later followed by a sale deed dated 28.03.2003, wherein respondent-judgment debtor further sold the said property to Manoj Kain and Sanjay Sharma. iii. Learned counsel further submits that ten issues were framed based on the pleadings of the parties, out of which issues no. 1 to 4 were decided against the respondent-judgment debtor. Issues no. 5 to 10 were taken up together, as they were inter-connected, and were also decided against the respondent-judgment debtor. According to learned counsel, the Trial Court, after discussing various clauses of the collaboration agreement [Ex. PW1/10] in paragraph 11 of the judgment dated 21.10.2011, proceeded in paragraph 12 of the judgment to return a categorical finding that the maximum permissible covered area for the basement, as per the Municipal Bye- Laws, was 1172 sq. ft. and not 251 sq. ft. as claimed by the appellantobjector. This finding was rendered after a detailed reference to the relevant Municipal Bye-Laws. iv. To rebut the contention of the appellant-objector that they were only permitted to construct 251.25 sq. ft., this Court, in paragraph 13, rejected their stand while referring to Ex. CW2/PX-1, which is the sale deed executed by defendant no. 1 in favour of Manoj Kumar Jain and Sanjay Sharma dated 28.01.2003. The sale deed itself recorded that on 20.01.2003, 490 sq. ft. of the basement had been constructed in the subject property, out of which 450 sq. ft. was sold to the said individuals for a consideration of Rs. 1 Lakh. v. Learned counsel places reliance on the judgment and decree dated 21.10.2011, and contends that the Court therein recorded a categorical finding that the total permissible area for construction of the basement was 1172 sq. ft. and consequently, held that the respondent-judgment debtor was entitled to specific performance of the tripartite agreement to sell dated 27.03.1997. vi. With regard to the sale deed dated 28.01.2003 [Ex. PW2/PX-1], learned counsel submits that the appellants therein, Shri Manoj Kain and Shri Sanjay Sharma, who purportedly purchased 450 sq. ft. of the basement, acquired no valid right, title, or interest therein, as the sale was executed in clear violation of the injunction order dated 10.11.1998. He further submits that this finding was correctly recorded by the Executing Court, which consequently directed the appellants therein to hand over possession of the subject property within four weeks from the date of judgment. He submits that the appellant-objector herein is also on the same footing as the third parties therein. vii. He placed reliance on the following observations of the Executing Court, which reads as under:- “Even otherwise, the basement portion having been purchased by them in violation of the injunction order, the sale in their favour is non est and a nullity in the eyes of law, thereby conferring no right, title, or interest upon them in respect of the said basement portion. Consequently, the appellants are liable to be evicted therefrom.” viii. With regards to the contention advanced by the appellant-objector that the property purchased by him did not exist on the date of institution of the suit, learned counsel submits that such a transaction is clearly governed by Section 52 of TPA, which deals with fraudulent transfers during litigation. He submits that the appellant, having acquired the property pendente lite, derives no independent title but merely steps into the shoes of the judgment debtor. Therefore, any defence unavailable to the judgment debtor is equally unavailable to the appellant-objector. Order XXI Rules 97 to 106 of CPC, which pertain to “Resistance to the delivery of possession to the decree-holder or purchaser” are also relevant in this context. ix. Learned counsel concludes his submissions by stating that the present application has been filed under Rule 97. While Rule 101 of Order XXI provides for the determination of all questions relating to right, title, or interest through an application under Rule 97, Rule 102 imposes a specific bar, expressly prohibiting claims by any person to whom the judgment debtor has transferred property subsequent to the institution of the suit in which the decree was passed. x. Learned counsel places reliance upon the judgment of the Supreme Court in Silverline Forum (P) Ltd. v. Rajiv Trust[3], specifically paragraphs 10, 14, 17, 18, 23, and 26 thereof, and also relies upon the decision in Agnigundala Venkata Ranga Rao v. Indukuru Ramachandra Reddy[4], particularly paragraphs 32 and 35 thereof. Analysis:-

16. I have heard the learned counsel for the parties and have perused the record.

17. The core aspect that emerges for consideration from the arguments advanced by the parties in the present appeal, is whether, under the facts and circumstances, the Executing Court was justified in dismissing the objections filed by the appellant-objector under Order XXI Rule 97 of the Code of Civil Procedure, having regard to the bar contained under Rule 102 thereof, and consequently directing delivery of possession, notwithstanding the contention of the appellant-objector that several issues relating to right, title, and interest in the subject property remain unanswered and necessitate fresh adjudication.

18. The case of the appellant-objector, in essence, is that the basement area purchased by him, classified by him as the “Rear Basement”, pertains exclusively to the additional floor area subsequently sanctioned by the concerned municipal authorities. Consequently, it is contended that the builder alone held rights over such an enhanced area, and therefore, the same was never the subject matter of the injunction order passed in the suit for specific performance. On this basis, the appellant-objector submits that the respondent no.1-decree holder does not possess any right, title, or interest whatsoever in relation to this additional basement portion. To substantiate this contention, learned counsel placed strong reliance on the decision of the Supreme Court in Noorduddin to contend that the scheme envisaged under Order XXI Rule 97 CPC clearly mandates that whenever an application is filed under the said provision, the Executing Court is obligated to adjudicate upon the rights, titles, and interests claimed by the parties, or by any third party asserting an independent claim in respect of the immovable property involved. Such determination, the Court held, shall be conclusive and binding upon the parties concerned as if it were a decree, subject only to appeal, thereby precluding its agitation by way of a separate suit. The relevant portion of the decision reads as under:-

19. However, upon examination of the decision, it only indicates that the Executing Court is obligated to adjudicate upon the assertions made by the “third party”. It is settled law that Rules 97 to 106 of Order XXI CPC are intended to address comprehensively all forms of resistance or obstruction encountered during the execution of a decree or order. These Rules collectively constitute a self-contained Code for the purpose of adjudicating questions arising from resistance or obstruction to the delivery of possession under a decree. A third party to the decree, who raises such resistance, would fall squarely within the purview of Rule 101 CPC, and in terms of Rule 98 read with Rule 101, an adjudication on the merits of such objections is mandated.

20. However, where resistance is offered by a transferee pendente lite of the judgment debtor, the scope of adjudication is significantly narrowed and confined strictly to determining whether the objector qualifies as such a transferee. If an affirmative finding is rendered in this regard, the Executing Court must conclude that such a transferee lacks the right to resist execution, having regard to the explicit bar contained in Rule 102 CPC. The legislative intent behind precluding additional objections by a transferee pendente lite aligns with the principles enshrined in Section 52 of the Transfer of Property Act, 1882, which prohibits the transfer of property during pendency of litigation.

21. This Court in Vineet Tiwari v. Harinder Pal Singh Chawla[5], while examining the jurisprudential contours of the doctrine of lis pendens and the 2025 SCC OnLine Del 780 status of a transferee pendente lite, observed that the principle of lis pendens, derived from the Latin maxim ut pendent nihil innovetur, implies that during the pendency of litigation, nothing new should be introduced or altered concerning the property in dispute. The doctrine essentially bars the creation of any fresh rights or interests in the subject matter of litigation during its pendency, ensuring that such transfers remain subordinate to, and contingent upon, the ultimate outcome of the pending suit. Upon a comprehensive analysis of a catena of decisions, this Court distilled the governing legal principles, which are set forth as under:-

22. Further, reference can be made to the decision of this Court in the case of Naresh Kumar Jain v. R.L. Kapoor[6], where it was observed that the objective of Rule 102 is to preclude a transferee pendente lite from obstructing the enjoyment of the fruits of the decree by the decree-holder and to prevent unwarranted delays in the execution proceedings. The relevant portion of the said decision reads as under:-

23. To establish his independent status as a third party and assert rights in the property distinct from those of the judgment-debtor, the appellant- 2025 SCC OnLine Del 448 objector has contended that the portion currently in his possession was constructed pursuant to a subsequent amendment in the Building Bye-laws and FAR, and consequently, did not originally form part of the subject matter of the dispute.

24. For a more comprehensive appreciation of the factual matrix, it is imperative to closely examine the contours of the suit property as delineated in the original suit for specific performance filed by respondent no.1-decree holder against respondents no.2 and no.3-judgment debtors.

25. A perusal of the plaint in CS(OS) 1571/1998, filed at the instance of the respondent no.1-decree holder and the corresponding written submissions, reveals the following factual position:i. In paragraph 5 of the plaint, it was averred that under the tripartite agreement to sell dated 27.03.1997, the respondent no.1-decree holder was entitled to obtain all possessory rights over the basement, which was to be constructed by the judgment-debtor builder. It was further stipulated that the construction would be carried out within the maximum permissible area and would comprise a hall, one toilet, and a pantry. Additionally, the respondent no.1-decree holder was granted the right to use the common toilet proposed to be constructed on the second floor, along with various other common area rights, including access to staircases, the lift, and other shared facilities. ii. In paragraph 11 of the plaint in CS(OS) 1571/1998, it was contended that only a truncated and abridged portion of the basement was utilized for construction, thereby deviating from the agreed terms. It was asserted that the construction was not carried out in the maximum permissible area, constituting a breach of the agreement, and consequently, the plaintiff was entitled to quantified liquidated damages. Furthermore, in paragraph 14 of the plaint, it was specifically averred that the basement was not constructed in accordance with the dimensions stipulated in the agreement to sell dated 27.03.1997. It was further alleged that the construction not only failed to comply with the maximum permissible area but also violated the terms of the building collaboration agreement dated 10.12.1996, which had been executed between the judgment debtors, i.e., respondent No. 2 and respondent No. 3 herein. iii. In response to the plaint, defendant No. 1 therein, i.e., respondent NO. 2-judgment debtor, took the position that the tripartite agreement dated 27.03.1997 was itself illegal. They further contended that the construction of the basement was solely the responsibility of defendant No. 2, which had been duly carried out. iv. Additionally, defendant No. 2 therein, i.e., respondent No. 3-judgment debtor, in his written statement, admitted in paragraph 5 on merits that the tripartite agreement to sell dated 27.03.1997 had indeed been executed between the parties. Further, in paragraphs 10 and 11, he asserted that the basement had been constructed in compliance with the Municipal Corporation of Delhi [MCD] rules and regulations, adhering to the maximum permissible area, which was approximately 251 sq. ft., and that the said construction had already been completed.

26. Accordingly, the Court appointed a Local Commissioner to inspect the suit property. Pursuant to the inspection, the Local Commissioner submitted a report dated 06.08.1998, wherein it was observed that the basement comprised a single large room admeasuring approximately14x20 square feet. It was further noted that the basement remained largely unconstructed and was filled with wooden panels and other construction materials. The relevant portion of the observations made by the Local Commissioner is as follows:-

27. Ultimately, when the matter was adjudicated on 21.10.2011, the Court undertook a comprehensive analysis of the aspect of maximum permissible area for the basement, which was to be constructed under the tripartite agreement to sell dated 27.03.1997. Consolidating and addressing issues NO. 5 to 10, the Court, in paragraph 12 of the judgment dated 21.10.2011, first noted that defendant No. 2 was obligated to construct the basement to the extent of the maximum permissible covered area and that the basement was agreed to be sold to the plaintiff for a total consideration of Rs. 12.25 lakhs. The Court further observed that the extent of the permissible basement was governed by the Building Bye-Laws, 1983. Upon examining the relevant bye-laws, it was noted that the suit property was constructed on a plot measuring 217 square yards. Consequently, the maximum permissible coverage for this plot was determined to be approximately 130 square yards, translating to a basement area of about 1172 square feet. Thus, the Court held that a basement measuring up to 1172 square feet was legally permissible for construction on the suit property.

28. Since the parties had explicitly agreed that defendant No. 1 was to construct the basement to the maximum permissible covered area and sell the same to the plaintiff for Rs. 12.25 lakhs, defendant no. 2 was duty-bound to construct, and defendant no. 1 was obligated to sell, a basement measuring 1172 square feet in accordance with the agreement to sell dated 27.03.1997. The Court further noted that the defendants, in their written statement, had erroneously claimed that the maximum permissible basement area for the suit property was only 251.25 square feet. The Court therein categorically rejected this claim, holding that the actual maximum permissible area for basement construction on the suit property was 1172 square feet. The relevant portion of the said observations are reproduced hereunder:- “12. It would thus been seen that defendant No. 2 was to construct basement to the extent of maximum permissible covered area and that basement was agreed to be sold to the plaintiff for a total consideration of Rs 12.25 lac. The extent of permissible basement has been prescribed in Building Bye Laws 1983. The relevant Bye Laws read as under: ― (b) Plot coverage—The plot coverage shall be as follows: (i) (b) Above 100 sq. yds. (83.61 sq. mtr.), but not exceeding 300 sq. yds. (250.83 sq. mts.)

(iv) Basement:

(b) Basement area shall not exceed the ground floor coverage and shall be below the ground floor. Basement area may however be extended below the internal courtyard and shaft. Admittedly, property No. 249, Defence Colony, New Delhi is constructed on a plot measuring 217 sq. yards. The maximum coverage on this plot, therefore, comes to about 130 sq. yards which would mean about 1172 sq. ft. Thus, basement, measuring up to 1172 sq. ft was permissible to be constructed on Property No. A-249, Defence Colony, New Delhi. Since the parties specifically agreed that defendant No. 1 was to construct basement to the extent of maximum permissible covered area and agreed to sell that much to the plaintiff for a consideration of Rs 12.25 lac, defendant No. 2 was required to construct and defendant No. 1 was requiredto sell, basement measuring 1172 sq. feet to the plaintiff in terms of the agreement to sell dated 27th March, 1997. The case of the defendants in the written statement is that the maximum permissible basement on Property No. 249, Defence Colony was 251.25 sq. ft which is patently incorrect. No material has been placed by the defendants on record to show that maximum permissible area for the basement was 251.25 sq. ft and not about 1172 sq. ft. I, therefore, have no hesitation in holding that the maximum permissible area for construction of basement on the suit property was about 1172 sq. ft.”

29. The Court, from paragraph no. 13 onwards, examined the position taken by the defendants, wherein they asserted that only 251.25 square feet of the basement had been constructed as it was the maximum permissible area. The Court, however, scrutinized the agreement entered between the respondent no.1-decree holder and the appellant-objector[Ex. CW-2/PX-1], and observed that the initially constructed basement area in the suit property, was actually to the extent of 290 square feet. This was found to be inconsistent with the plea taken in the written statement, where the defendants claimed the constructed basement area to be only 251.25 square feet.

30. Further, the sale deed dated 20.01.2003 [Ex. CW-2/PX-1] established that as of that date, a total of 890 square feet of the basement had been constructed on the suit property. Out of this, an area measuring 450 square feet had been sold by defendant No. 1 to Mr. Sanjay Sharma and Mr. Manoj Kain. The Court reiterated that under the agreement dated 27.03.1997, the defendants were obligated to construct the basement to the maximum permissible coverage, which amounted to approximately 1172 square feet. Consequently, it was held that the plaintiff therein, i.e. the respondent no.1decree holder was entitled to the specific performance of the agreement dated 27.03.1997, at the very least, concerning the entirety of the basement as constructed.

31. The Court further noted that even if the initially constructed basement area was only 251.25 or 290 square feet and the remaining portion was constructed subsequently, as indicated in the sale deed [Ex. CW-2/PX-1], this fact would not alter the entitlement of the plaintiff. The plaintiff remained entitled to the entire basement space that could have been lawfully constructed on the property. It was further emphasized that the relevant Building Bye-Laws, 1983, which were in force at the time the agreement to sell was executed, permitted a basement area of approximately 1172 square feet.

32. Regarding the subsequent sale of 450 square feet of the basement to M/s ESSEMM Realtors, a subsequent purchaser, the purchasers contended that they were unaware of the pending suit and the subsisting injunction order and, therefore, had not acted in violation thereof. While the Court noted that M/s ESSEMM Realtors had not wilfully contravened the injunction order, it nonetheless held that the purchase and the consequent sale deed were in clear violation of the injunction. Consequently, the sale transaction was declared non est and a nullity in the eyes of law, conferring no right, title, or interest upon M/s ESSEMM Realtors in respect of the basement portion purchased by them. The relevant observations made by the Court therein are reproduced hereunder:- “In my view considering all the facts and circumstances of the case, the ends of justice in this case would be adequately met if Mr. Sanjay Sharma and Mr. Manoj Kain are directed to deliver possession of the basement floor occupied by them in property No.A-249 Defence Colony to the plaintiff without demur or protest, within 04 weeks from the date of this order. Even otherwise, the basement portion having been purchased by them in violation of the injunction order, the sale in their favour is non est and nullity in the eyes of law and it confers no right, title or interest on them in respect of the basement portion purchased by them and they are liable to be evicted therefrom. Mr. Sanjay Sharma and Mr. Manoj Kain are accordingly directed to deliver peaceful and vacant possession of the basement portion occupied by them in Property No. A-249 Defence Colony to the plaintiff without demur or protest within 04 weeks from today. The application stands disposed of in terms of this order.”

33. Thus, it is evident that while adjudicating the suit for specific performance, the Court declared all subsequent sale deeds executed after the grant of the injunction order to be non est and, therefore, a nullity in the eyes of law. Pursuant to this judgment and decree, the decree holder sought execution of the decree, in furtherance of which a bailiff was appointed on 31.10.2018. Under the authority of the “warrant of possession”, the Bailiff proceeded to take possession of the entire basement.

34. Aggrieved by the said execution proceedings, the appellant-objector filed an application on 22.11.2018, invoking Order XXI Rule 97 CPC, contending that he had purchased the suit property vide sale deed dated 07.08.2000, and was bona fide unaware of the ongoing litigation between the parties. He asserted that he had no reason to suspect any dispute concerning the property, as the rear basement was accessible only through the front basement. The appellant-objector further relied on the registered sale deed, arguing that unless the said deed was formally cancelled, he could not be dispossessed. Additionally, he contended that the rear portion of the basement had been expanded subsequently and, therefore, was not part of the subject matter of CS(OS) 1571/1998. Considering the submissions advanced, the Executing Court observed that multiple sale transactions, including the sale to M/s ESSEMM Realtors, had been carried out by the judgment-debtors during the subsistence of the injunction order and the pendency of CS(OS) 1571/1998. The Court noted that the decree passed in CS(OS) 1571/1998 had categorically recognized the entitlement of the decree-holder to the maximum permissible area in the basement as per the original tripartite agreement. It further held that if the Floor Area Ratio [FAR] had increased, the benefit of such an increase would vest with the decree holder as the lawful purchaser and could not be retained solely by the builder. Additionally, the Court had, in clear terms, held that the decree holder was entitled to a basement area of 1172 square feet. Even the byelaws relied upon by the appellant-objector indicated that the maximum permissible area had not been fully constructed by the judgment-debtors and was not handed over to the decree holder. The Executing Court further relied on Section 52 of the Transfer of Property Act, 1882, which prohibits the creation of third-party rights during the pendency of a suit. Consequently, it was held that the judgment-debtors had no authority to alienate any portion of the basement or create third-party rights, and any enhanced FAR, if applicable, would enure solely to the benefit of the decree holder.

35. Based on these findings, the Executing Court concluded that the appellant-objector had no enforceable rights in the basement, and the sale deed in his favour conferred no valid title. It was further held that the decree holder was the rightful owner of the entire basement.

36. Thus, the conclusions of the Executing Court were in alignment with the findings rendered in CS(OS) 1571/1998. The position of the appellantobjector herein is analogous to M/s ESSEMM Realtors, who had similarly purchased a portion of the basement in 2003.

37. Consequently, it is evident that the objections raised by the appellantobjector in the present execution proceedings were substantively the same as those adjudicated by the Court while passing the judgment and decree in CS(OS) 1571/1998. The only distinction lies in the fact that, in CS(OS) 1571/1998, the contention that the maximum permissible area of the basement was limited to 251 square feet, was advanced by the respondent no.2 and no.3-judgment-debtors, and other purchasers, whereas in the instant execution proceedings, the same argument is now being raised by the appellant-objector.

38. Therefore, the first and foremost aspect that needs determination is whether the appellant-objector is raising contentions as an independent third party or, by virtue of being a transferee pendente lite, has only stepped into the shoes of the judgment debtor. The relevant provisions regarding the same are enumerated under Order XXI of the Code of Civil Procedure, which has been rightly referred to by the appellant-objector.

39. Order XXI governs the execution of decrees and orders. Rules 97 to 106, falling under the heading “Resistance to delivery of possession to decree-holder or purchaser,” provide a comprehensive mechanism to address any form of obstruction encountered during execution proceedings.

40. The Supreme Court, in Silverline Forum, examined the scheme of Order XXI Rules 97 to 106 and held that any resistance or obstruction raised by a third party to the execution of a decree can be adjudicated upon under Rule 97 CPC. As already noted above, under Rule 101 CPC, a third party resisting execution is entitled to an adjudication on all questions relating to right, title, or interest in the suit property. In such cases, Rule 98, read with Rule 101, mandates a full-fledged determination of the rights asserted by the objector.

41. The Court, however, clarified that when resistance to execution is raised by a transferee pendente lite of the judgment-debtor, the scope of adjudication stands substantially circumscribed to the singular determination of whether the said objector indeed falls within the category of such a transferee. Once this question is answered in the affirmative, the Executing Court is obliged, in terms of Rule 102 CPC, to hold that the transferee possesses no right to obstruct the execution proceedings. Therefore, considering that the CPC distinctly demarcates the rights of third-party objectors vis-à-vis transferees pendente lite, the preliminary inquiry must invariably ascertain the precise legal character of the objector or resistor in execution. The scope and depth of judicial scrutiny by the Executing Court hinge exclusively upon this preliminary classification. It bears repetition that, upon establishing the status of the objector as a transferee pendente lite, no further consideration of their objections is permissible, as such claims stand irretrievably defeated by the principle of lis pendens, statutorily encapsulated in Section 52 of the Transfer of Property Act.

42. If the contentions of the appellant-objector are tested on the anvil of Order XXI of CPC and Section 52 of TPA, the same would indicate that post the sale deed of 2000 being executed while the injunction order is operating, the appellant-objector would be falling under the ambit of transferee pendent lite and, therefore, his objections under Order XXI Rule 97 were per se not maintainable. Thus, the adjudication of his objections would not fall within the purview of the decree as envisaged under Rule 103 of Order XXI of the CPC.

43. In Topanmal Chhotamal v. Kundomal Gangaram[7],it has been categorically observed that an executing Court, in no circumstances, can go behind the decree and give any relief which was denied to the party. The Executing Court must take the decree as it stands and the same is binding between the parties.

44. In the instant case, the transferees, being ESSEMM Realtors, also a subsequent purchaser, and the appellant-objector, being a purchaser in the year 2000, both have sale deeds that were executed post the grant of order of injunction qua the basement. The contentions raised by the respondents nos. 2 and no.3-judgment debtors, the other subsequent purchaser, and the appellant-objector are analogous.

45. The Court, at this stage, deems it appropriate to cull out the essential arguments of the appellant-objector and indicate how the same objections 1959 SCC OnLine SC 22 were already dealt with by the Court that has passed the judgment and decree in CS(OS) 1571/1998. Principle contention(s) of appellant-objector How similar contentions were dealt with by the Court in CS(OS) 1571/1998 The appellant-objector was unaware of the pending litigation and, consequently, of the injunction order. In paragraph 18 of the judgment and decree in CS(OS) 1571/1998, the Court categorically held that the sale deed executed in favor of third parties in violation of the injunction order were void ab initio and non est in law and the knowledge of the subsequent purchaser is immaterial. The maximum permissible construction at the time of initiation of litigation was only 251 sq. ft.; thus, the decree-holder is not entitled to claim any additional construction beyond this limit. The injunction order applied only to 251 sq. ft. as of that date and is not applicable to subsequent construction. In paragraph 13 of the judgment, the Court expressly rejected this contention, holding that the Building Bye-Laws, 1983, which were in force at the time of execution of the agreement to sell, permitted a basement area of 1172 sq. ft.. The Court further observed that even if only 251.25 or 290 sq. ft. of the basement was initially constructed and the remaining portion was developed later, the entitlement of the decree holder remained unaffected. The plaintiff was held entitled to the entire basement area that could have been legally constructed under the governing bye-laws.

46. The contentions raised by the appellant-objector are thus found to be merely reiterative of the arguments previously advanced by the judgmentdebtors, respondents no. 2 and no. 3, which already stand conclusively adjudicated on merits. Pertinently, the transfer upon which the appellantobjector predicates his claim was executed during the subsistence of an interim injunction and unquestionably constitutes a transfer pendente lite. Moreover, at the relevant juncture, the area earmarked for the basement was smaller than the permissible construction area, thereby substantiating the prior and superior entitlement of the decree-holder, whose rights emanated explicitly from the original agreement executed among the parties. Hence, the claim of the decree-holder could not have been subverted through such subsequent transactions.

47. Consequently, the appellant-objector, being categorically identified as a transferee pendente lite, is precluded from re-agitating the defenses previously canvassed by the judgment-debtors and possesses no lawful standing to obstruct or impede execution proceedings. This Court finds no infirmity whatsoever in the impugned order passed by the Executing Court, which rightly declined to venture into any further inquiry after conclusively determining the status of the appellant-objector as transferee pendente lite.

48. Thus, the instant appeal fails and stands dismissed, along with the pending application(s). No order as to cost.

JUDGE MARCH 25, 2024